Navigating Sexual Assault Complaints on Campus

Private and public colleges, as well as the federal government, have offered their various views and opinions on how sexual assault cases on college campuses should be handled. Title IX is the federal law that dictates how such cases must be handled procedurally by colleges who receive federal funding. Almost all colleges – if not all – also have their own investigative and due process procedures regarding sexual assault cases. Making an already emotionally difficult matter more complex, the way colleges define sexual assault can be vastly different from how students define it. Further, among students, female students often view sexual assault differently than male students.

The common denominator in most of these cases is often the definition of “consent.” Though this is certainly not always the case, it is common for an accused student to truly believe the sexual acts were consensual, and the accusing student to truly believe they were not; even when they agree how the sexual acts occurred. This poses a unique problem for lawyers advocating for either student. When there is no real question of fact, we are left with deciphering, interpreting, and applying the law. The “law” in these cases is almost always the language contained in the student handbook – often a dense treatise written by lawyers, and probably rarely read by students in detail before they start school. It is often only after a complaint is made that the involved students read the words in the student handbook pertaining to their particular situation; and what they find is not always clear.

There is no common definition of “consent,” as many colleges define it differently – thereby adding to the confusion. It used to be thought that silence (ie; not saying no) could be taken as consent. That no longer seems to be the case; with many schools adopting a “yes means yes” policy – that a student has to affirmatively agree to the sexual activity; that silence does not necessarily mean consent. However, students are sometimes not aware of this distinction before engaging in a sexual act with someone; often assuming that silence does mean consent. Moreover, many student handbooks take into consideration the subjective feeling of the complainant; not just an objective analysis of the actions and words of the students involved. These questions leave the door wide open for interpretation on both ends, making it very difficult for a student to navigate a formal complaint without legal assistance.

We represent students who have been accused of sexual assault, as well as those who have been victims of it. If a sexual assault complaint has been made against you by a fellow student, or if you have made such a complaint yourself, we at Kerstein, Coren & Lichtenstein can assist you with the process, which often involves a written response, as well as a hearing.